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Published by John H. Tucker

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Published by: John H. Tucker on Oct 20, 2011
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United States Court of Appeals
 ___________  No. 10-3335 ___________ United States of America,**Appellee,**Appeal from the United Statesv.*District Court for the*Western District of Missouri.Brandon L. Bennett,**Appellant.* ___________ Submitted: June 17, 2011Filed: October 19, 2011 ___________ Before MURPHY and SMITH, Circuit Judges, and SCHREIER, District Judge.
 ___________ SMITH, Circuit Judge.Brandon Bennett pleaded guilty to distributing and conspiring to distributeBenzylpiperazine (BZP) in violation of federal law. At sentencing, Bennett objectedto the district court's conclusion that BZP was sufficiently equivalent to
Methylenedioxymethamphetamine (MDMA)—the chemical name for the drugThe Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota, sitting by designation.The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
commonly called "Ecstasy"—to compute Bennett's drug quantity under theSentencing Guidelines. The district court denied Bennett's objection and sentencedBennett at the bottom of the advisory Guidelines range to 57 months' imprisonment.Bennett appeals and, for the reasons that follow, we affirm.I.
On August 11, 2008, Jackson County, Missouri Drug Task Force officers purchased 50 tablets of BZP for $400 from Bennett through a confidential informant.On August 21, 2008, an undercover detective purchased five tablets of BZP for $50from Bennett. On August 29, 2008, a second detective purchased 100 BZP tablets for $775. On September 4, 2008, authorities purchased another 100 tablets for $750.On October 29, 2008, authorities arrested Bennett after a failed attempt to purchase another 100 BZP tablets. Bennett waived his
rights and promptlyconfessed to selling the tablets and purchasing them from his codefendant, Randy"Roller Coaster" Robinson. Subsequently, Bennett pleaded guilty to two counts of distributing BZP, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and onecount of conspiring to distribute BZP, in violation of 21 U.S.C. §§ 841(a)(1),841(b)(1)(C) and 846.Before his sentencing hearing, Bennett filed a sentencing memorandum arguingthat the "sentencing guidelines contain no reference to BZP at all" and that,"[b]ecause the Sentencing Commission has not studied BZP, the court has no basisto defer to the advisory guideline range as a reasonable sentence." Bennett attachedto his sentencing memorandum a study from the National Drug Intelligence Center indicating that the typical dosage of BZP ranges from 20 to 200 milligrams, and that"BZP is 10 to 20 times less potent than amphetamine." Bennett also cited a districtcourt case from the Middle District of Alabama in which the district judge concludedthat BZP was less potent than Ecstasy and varied downward on that basis.
See United States v. Rose
, 722 F. Supp. 2d 1286 (M.D. Ala. 2010).-2-
On May 25, 2010, the district court continued Bennett's sentencing to further review Bennett's objections to BZP and MDMA's relatedness. In response, UnitedStates Probation authored a second addendum to the Presentence Investigation Report(PSR) in which it calculated Bennett's base offense level pursuant to U.S.S.G. §2D1.1, Application Note 5. That provision directs the sentencing court to determinethe amount, for sentencing purposes, of a controlled substance based on themarihuana equivalency of the most closely related controlled substance referencedin the Guidelines. The PSR determined that BZP was most closely related toMDMA/Ecstasy. According to the drug equivalency table, one gram of MDMAequals 500 grams of marihuana. Approximately 330 grams of BZP was attributed to
Bennett, which is roughly equal to 165 kilograms of marihuana, yielding a baseoffense level of 26.On October 5, 2010, the district court reconvened Bennett's sentencing hearing.The court opened the hearing, stating:THE COURT:And I believe Mr. Moss has filed a sentencingmemorandum on August 30th, 2010, as well.And I will advise the—the parties and so therecord is clear,
 I have reviewed all thosedocuments
. I have reviewed—I've received somemore—another letter, at least one other letter insupport of Mr. Bennett. And I have reviewed allThe Sentencing Guidelines provide, in pertinent part, that "[i]n the case of a
controlled substance that is not specifically referenced in [the drug-quantityguideline], determine the base offense level using the marihuana equivalency of themost closely related controlled substance referenced in [the drug-quantity guideline]."U.S.S.G. § 2D1.1, cmt. 5.-3-

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